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Constitutional Scholar Makes Case for Continuous Constitution in Time of War
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Constitutional Scholar Makes Case for Continuous Constitution in Time of War
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Kathleen Sullivan

CONSTITUTIONAL scholar Kathleen Sullivan rejected the notion of a wartime emergency Constitution in a lecture last November at the National Constitution Center.

Emphasizing history and theory, Sullivan, a visiting scholar at Penn Law and the NCC said the United States, unlike countries such as France, India and South Africa, has no provision that permits the temporary suspension of rights during crisis.

The former dean of Stanford Law School said the idea of a continuous Constitution has been reinforced in recent Supreme Court decisions. In the Hamdi decision, the Court ruled that the American-born soldier who was captured with the Taliban and detained in a military jail was entitled to due process, including knowing the charges against him. He has since been released. In the other decision, the Court wrote that alien combatants also had a right of access to judicial review.

Yet, Sullivan said, history is replete with examples of presidents invoking executive privilege to deprive people of their rights, such as when Lincoln suspended habeas corpus during the Civil War and when Franklin Roosevelt interned Japanese-Americans during World War II. Truman also seized the steel mills to break a strike and continue production during the Korean War.


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